Smith, R v

A purported abandonment of a criminal appeal is a nullity where it was lodged without the applicant’s authority and the applicant was unaware that it had been filed. This is not merely a case in which the applicant’s mind did not go with an authorised act. The court must treat an unauthorised notice of abandonment as ineffective.

The applicant had been convicted of murdering her infant daughter at Swansea Crown Court and sentenced to life imprisonment with a minimum term of 12 years. She later sought leave, out of time, to appeal against conviction.

Fresh counsel advised that the appeal should be abandoned after receiving responses from the trial legal team. Her former solicitors lodged a Form A notice of abandonment. The applicant then stated that she had neither known of nor authorised the abandonment. The solicitors ultimately accepted that they may have lodged the form without her consent.

The issue was whether the purported abandonment was valid.

1. The court held that the notice of abandonment was a nullity. The applicant had not simply failed to share an authorised decision to abandon her appeal. She had been wholly unaware that the notice had been lodged, and those acting for her lacked authority to lodge it.

2. The court therefore had no choice but to treat the purported abandonment as ineffective. The application for an extension of time and leave to appeal remained for consideration by a single judge. The court stressed that this conclusion gave no encouragement concerning the merits: formidable obstacles remained both to the substantial delay and to the proposed appeal.

3. The explanation supplied by the solicitors was described as singularly unsatisfactory. The court directed that a perfected copy of its judgment be sent to the Solicitors Regulation Authority so that it could determine whether action against the firm was appropriate.

• Court of Appeal (Criminal Division): held that the purported abandonment of the application to appeal was a nullity and left the outstanding application for determination by a single judge: [2016] EWCA Crim 2173.
• Crown Court at Swansea: on 6 July 2012, the applicant was convicted of murder and sentenced to life imprisonment with a minimum term of 12 years.